[Federal Register Volume 89, Number 34 (Tuesday, February 20, 2024)]
[Proposed Rules]
[Pages 12796-12798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03324]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[[EPA-R02-OAR-2023-0638, FRL-11638-01-R2]


Approval and Promulgation of Plans for Designated Facilities; New 
Jersey; Delegation of Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a request from the New Jersey Department of Environmental 
Protection (NJDEP) for the delegation of authority to implement and 
enforce the Federal Plan Requirements for Municipal Solid Waste (MSW) 
landfills that commenced construction on or before July 17, 2014, and 
have not been modified or reconstructed since July 17, 2014 (Federal 
Plan). On November 21, 2023, the NJDEP Assistant Commissioner signed a 
memorandum of agreement (MoA) concerning the delegation of authority of 
the Federal Plan to NJDEP by the EPA. Subsequently, on November 28, 
2023, the MoA became effective upon the EPA Region 2 Administrator's 
signature. The Federal plan addresses the implementation and 
enforcement of the emission guidelines applicable to existing MSW 
landfills located in areas not covered by an approved and currently 
effective state plan. The Federal plan imposes emission limits and 
other control requirements for existing affected MSW landfills which 
will reduce designated pollutants. The purpose of this delegation is to 
transfer primary implementation and enforcement responsibilities from 
the EPA to NJDEP for existing sources of MSW landfills. This document 
informs the public of the MoA, provides a copy of the signed document, 
and proposes to amend regulatory text.

DATES: Written comments must be received on or before March 21, 2024.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2023-0636 at https://www.regulations.gov. Although listed in 
the index, some information is not publicly available, e.g., Controlled 
Unclassified Information (CUI) (formally referred to as Confidential 
Business Information (CBI)) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through https://www.regulations.gov. Follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be CUI or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CUI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental 
Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New 
York, New York 10007-1866, at (212) 637-3378, or by email at 
<a href="/cdn-cgi/l/email-protection#84d0e5f2e1f6e5f7aac2e5f1f7f0ebc4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="b5e1d4c3d0c7d4c69bf3d4c0c6c1daf5d0c5d49bd2dac3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section is 
arranged as follows:

I. Background
II. What is the EPA's Proposed Action?
III. Statutory and Executive Order Reviews

I. Background

    On May 21, 2021, the EPA published a final rule in the Federal 
Register at 86 FR 27756 to promulgate the Federal Plan Requirements for 
Municipal Solid Waste (MSW) Landfills That Commenced Construction On or 
Before July 17, 2014, and Have Not Been Modified or Reconstructed Since 
July 17, 2014, (Federal Plan), pursuant to section 111(d) of the Clean 
Air Act (CAA). This Federal Plan implements the 2016 Emission 
Guidelines (EG), 40 CFR part 60, subpart Cf, which applies to MSW 
landfills that have accepted waste at any time since November 8, 1987, 
and commenced construction,

[[Page 12797]]

reconstruction, or modification on or before July 17, 2014. See 81 FR 
59332. The CAA requires States with existing MSW landfills subject to 
the EG to submit State Plans to the EPA in order to implement and 
enforce the EG. For States without an approved plan, CAA section 111 
and 40 CFR 60.27(c) and (d) require the EPA to develop, implement, and 
enforce a Federal plan for existing MSW landfills. This Federal Plan 
applies in areas without an approved State Plan by requiring existing 
MSW landfills that reach a landfill gas emission threshold of 34 
megagrams (Mg) of nonmethane organic compounds (NMOC) or more per year 
to install a system to collect and control landfill gas. Other 
requirements for applicable sources include presumptive emission 
limits, compliance schedules, testing, monitoring, reporting, and 
recordkeeping. The final rule's preamble also establishes how a State 
can request delegation of the Federal Plan for implementation and 
enforcement authority on behalf of the EPA. The procedure requires the 
State to submit a letter to the EPA that: (1) Demonstrates that the 
State has adequate resources, as well as the legal and enforcement 
authority, to administer and enforce the program; (2) includes an 
inventory of designated MSW landfills, which includes those that have 
ceased operation, but have not been dismantled or rendered inoperable, 
and an inventory of the designated units' air emissions; (3) certifies 
that a public hearing was held on the State's delegation request; and 
(4) includes an MoA between the State and the EPA that sets forth the 
terms and conditions of delegation, the effective date of the 
agreement, and the mechanism to transfer authority.
    On May 8, 2023, NJDEP submitted to the EPA a formal written request 
for delegation of authority to implement and enforce the Federal Plan 
for MSW landfills located in New Jersey. The goal of the request was to 
acquire the delegation of authority to implement and enforce the 
Federal Plan for existing MSW landfills located in New Jersey, in 
accordance with CAA section 112(l) and 40 CFR 63.91. The letter also 
provided the following enclosures:
    <bullet> Attachment 1: Demonstration of Adequate Resources and 
Legal Authority;
    <bullet> Attachment 2: Inventory of Affected MSW Landfills, their 
emissions, and provisions for Progress Reports to the EPA (40 CFR 
60.25(a));
    <bullet> Attachment 3: Compliance Schedule (40 CFR 62.16712); \1\
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    \1\ In identifying this document, New Jersey's submittal cited 
the Emission Guideline requirements under 40 CFR part 60, subpart 
Cf. The EPA understands that to be a typographical error as, within 
that same submittal, the State affirms that the Department will 
follow the compliance schedule prescribed under 40 CFR 62.16712. The 
citation is corrected accordingly.
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    <bullet> Attachment 4: Certification of Public Hearing on the State 
Delegation Request (40 CFR 60.23); and
    <bullet> Attachment 5: Commitment to Enter into a Memorandum of 
Agreement with the EPA.
    Within New Jersey's formal request for delegation of authority to 
implement and enforce the Federal Plan, the State provides that all of 
the Federal Plan requirements in 40 CFR part 62, subpart OOO will be 
incorporated in each affected designated facility's Title V operating 
permit or preconstruction permit (PCP), when issued. The NJDEP 
approves, and issues permits and certificates under the authority of 
N.J.S.A. 26:2C-9.2. NJDEP asserts that all Title V operating permits 
(issued N.J.A.C. 7:27-22) and PCPs (issued under N.J.A.C. 7:27-8) for 
affected MSW landfill facilities with have matching, or stricter, 
emission limits than are stipulated under the Federal Plan at 40 CFR 
62.16714 and 62.16716.
    After consideration of these materials, the EPA determined that the 
request letter and attached documents adequately fulfilled the State 
delegation criteria outlined in Federal Plan's final rulemaking notice, 
Section VI-D. Delegation of the Federal Plan and Retained Authorities. 
See 86 FR 27756. NJDEP demonstrated that its air agency has the 
requisite authority and resources to administer and enforce the Federal 
Plan. New Jersey's legal authority to support delegation of the Federal 
Plan is demonstrated by the opinion of the Acting Attorney General of 
New Jersey which states that the NJDEP has adequate legal authority to 
implement and enforce the MSW landfill Federal Plan.\2\ Additionally, 
NJDEP certifies that it has adequate staffing levels and divisional 
resources to ensure complete and timely review and issuance of 
conforming permits, and to monitor and ensure compliance of all 
affected landfills in the State. According to the submitted inventory, 
New Jersey currently has eight (8) existing MSW landfill facilities, as 
defined under 40 CFR 62.16711, that are expected to be affected by the 
Federal Plan. Of the eight (8) identified MSW landfills, four (4) 
facilities are currently in operation: Cape May County MUA Secure 
Landfill, Gloucester County Solid Waste Complex, Keegan SLF, and 
Monmouth County Reclamation Center. The remaining four (4) landfills 
are closed: Cinnamon Bay LLC & Edgeboro Landfill Disposal, Linden City 
SFL, Parklands Recycling & Disposal Facility, and Pinelands Park. 
Within NJDEP's formal request, the State also provided an inventory of 
emissions from the affected MSW landfills in New Jersey and compared 
those emissions to the Federal Plan Emission Limits. NJDEP's 
Certification of Public Hearing on the State's Delegation Request was 
also provided with the State's formal request. NJDEP published a notice 
of proposed Request for Delegation of Authority and Public Hearing in 
the New Jersey Register on March 6, 2023, 55 N.J.R. 498(a), and a 
second notice with corrected close of comment period on April 3, 2023, 
55 N.J.R. 612(a). A public hearing was also held on April 10, 2023, in 
accordance with the requirements outlined in 40 CFR 60.23. NJDEP 
provided a copy of the public notices of the public hearing within the 
State's formal request.
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    \2\ A copy of New Jersey's Acting Attorney General opinion is 
attached to NJDEP's request letter to implement and enforce the 
Federal Plan Requirements for MSW landfills that commenced 
construction on or before July 17, 2014 and have not been modified 
or reconstructed since July 17, 2014.
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    The Memorandum of Agreement Concerning the Delegation of Authority 
of the Federal Plan for Existing Municipal Solid Waste Landfills to the 
New Jersey Department of Environmental Protection by the United States 
Environmental Protection Agency includes the delegation conditions 
established, the authorities which NJDEP assumes and EPA retains, a 
policy statement defining the responsibilities of both parties, program 
implementation procedures, reporting and transmittal of information 
requirements, and contact information. Moreover, the MoA states that it 
is effective upon authorized signature by both NJDEP and EPA and that 
it shall have an effective date of the last date on which it is signed. 
The mechanism to transfer authority is explicitly identified to be upon 
signature of both parties. The MoA also states that EPA will publish an 
action in the Federal Register delegating to the NJDEP the authority to 
implement and enforce the Federal Plan.
    The MoA was signed by the NJDEP Assistant Commissioner on November 
21, 2023, and became effective upon signature of the EPA Region 2 
Regional Administrator on November 28, 2023. The Federal Plan is 
codified at 40 CFR part 62, subpart OOO. The text of EPA's and NJDEP 
MoA, effective November

[[Page 12798]]

28, 2023, can be found in the docket of this rulemaking.

II. Proposed Action

    The EPA has evaluated New Jersey's submittal for consistency with 
the CAA, EPA regulations, and EPA policy. New Jersey has met all the 
requirements of EPA's guidance for obtaining the delegation of 
authority to implement and enforce the Federal Plan. New Jersey entered 
into a MoA with the EPA, and it became effective on November 28, 2023. 
Accordingly, EPA is proposing to approve New Jersey's request dated May 
8, 2023, for the delegation of authority of the Federal Plans for 
existing sources of MSW Landfills. The EPA will continue to retain 
enforcement authority along with NJDEP, and the EPA will continue to 
retain certain specific authorities reserved to EPA in the Federal Plan 
and as indicated in the MoA (e.g., authority to approve major 
alternatives to test methods or monitoring, authority to approve 
alternative methods to determine the site-specific NMOC concentration 
or a site-specific methane generation rate constant, etc.).
    The EPA is proposing to amend regulatory text at 40 CFR part 62, 
subpart FF--New Jersey, to promulgate the approved delegation of 
authority to the NJDEP for implementing and enforcing the Federal Plan 
Requirements for Municipal Solid Waste Landfills That Commenced 
Construction On or Before July 17, 2014 and Have Not Been Modified or 
Reconstructed Since July 17, 2014 at 40 CFR part 62, subpart OOO.
    The EPA is soliciting public comment on this proposed revision to 
the regulatory text or on relevant matters overall. These comments will 
be considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to this proposed action by following the instructions listed 
in the ADDRESSES section of this document.

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a State 
Plan submittal that complies with the provisions of the CAA and 
applicable Federal regulations. CAA sections 111(d) and 129(b); 40 CFR 
part 60, subparts B and Cf; and 40 CFR part 62, subpart A; and 40 CFR 
62.04. Thus, in reviewing state plan submissions, EPA's role is to 
approve state choices, provided they meet the criteria of the CAA. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993), and 13563 (76 FR 3821, January 
21, 2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
    In addition, this proposed rulemaking action, pertaining to New 
Jersey's submission, is not approved to apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have Tribal implications and will not impose any 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The NJDEP did not evaluate environmental justice considerations as 
part of its formal request; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA did 
not perform an EJ analysis and did not consider EJ in this action. Due 
to the nature of the action being taken here, this action is expected 
to have a neutral to positive impact on the air quality of the affected 
area. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving environmental justice for people of color, 
low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Landfills, Reporting and recordkeeping requirements, Waste 
treatment and disposal.

    Authority: 42 U.S.C. 7401 et seq.

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-03324 Filed 2-16-24; 8:45 am]
BILLING CODE 6560-50-P


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